Judicial Review and Indian Courts

The doctrine of Judicial review has been originated and developed by the American Supreme Court, although there is no express provision in the American Constitution for the Judicial review. In Mammary v. Madison, the Supreme Court made it clear that it had the power of Judicial review. Chief Justice George Marshall said,” Certainly all those who have framed the written Constitution contemplate them as forming the fundamental and paramount law of the nations, and consequently, the theory of every such Government must be that an act of the legislature, repugnant to the Constitution is void”.

There is supremacy of Constitution in U. S. A. And, therefore, in case of conflict teens the Constitution and the Acts passed by the legislature, the Courts follow the Constitution and declare the acts to be unconstitutional and, therefore, void. The Courts declare void the acts of the legislature and the executive, if they are found in violation of the provisions of the Constitution. Judicial Review In India The constitution of India, in this respect, is more a kin to the U. S. Constitution than the British.

In Britain, the doctrine of parliamentary supremacy still holds goods. No court of law there can declare a parliamentary enactment invalid. On the contrary very court is constrained to enforce every provision” of the law of parliament. Under the constitution of India parliament is not Supreme. Its powers are limited in the two ways. First, there is the division of powers between the union and the states. Parliament is competent to pass laws only with respect to those subjects which are guaranteed to the citizens against every form of legislative encroachment.

Being the guardian of Fundamental Rights and the arbiter of constitutional conflicts between the union and the states with respect to the division of powers between hem, the Supreme Court stands in a unique position where from it is competent to exercise the power of reviewing legislative enactments both of parliament and the state legislatures. This is what makes the court a powerful instrument of Judicial review under the constitution. As Dry. M. P. Gain has rightly observed: “The doctrine of judicial review is thus firmly rooted in India, and has the explicit sanction of the constitution. In the framework of a constitution which guarantees individual Fundamental Rights, divides power between the union and the states and clearly defines and delimits the rowers and functions of every organ of the state including the parliament, Judiciary plays a very important role under their powers of Judicial review. The power of Judicial review of legislation is given to the Judiciary both by the Judicial Review and Indian Courts By unchangeable the Indian constitution, Judicial review of legislation such as Act 13, 32, 131-136, 143, 226, 145, 246, 251 , 254 and 372.

Article 372 (1) establishes the Judicial review of the pre-constitutional legislation similarly. Article 13 specifically declares that any law which contravenes any of the provision of the part of Fundamental Rights shall be did. Even our Supreme Court has observed, even without the specific provisions in Article 13. The court would have the power to declare any enactment which transgresses a Fundamental Right as invalid. The Supreme and high courts are constituted the protector and guarantor of Fundamental Rights under Articles 32 and 226.

Articles 251 and 254 say that in case of in consistent if between union and state laws, the state law shall be void. Judicial review is a great weapon in the hands of Judges. It comprises the power of a court to hold unconstitutional and unenforceable any law r order based upon such law or any other action by a public authority which is inconsistent or in conflict with the basic law of the land. In fact, the study of constitutional law may be described as a study of the doctrine of Judicial review in action The courts have power to strike down any law, if they believe it to be unconstitutional.

The Judgment in I. R. Cello v. The State of Tamil Nodal has answered this question by establishing the pre-eminence of Judicial review of each and every part of the Constitution. The Court has laid down a two-fold test: (a) whether an amendment or a awe is violate of any of the Fundamental Rights in Part Ill (b) if so, whether the violation found is destructive of the basic 1(1999) 7 SEC 580 structure of the Constitution. If the court finds that the impugned enactment damages the basic structure of the Constitution, it shall be declared void, notwithstanding the fictional immunity given to it by Article 31 B.

Thus, the basic structure doctrine requires the State to Justify the degree of invasion of Fundamental Rights in every given case; and this is where the court’s power of Judicial review comes in. Under our Constitution, Judicial review can conveniently be classified under three headed: (1) Judicial review of Constitutional amendments. -This has been the subject- matter of consideration in various cases by the Supreme Court; of them worth mentioning are: Shanghai Parkas cases, Jeans Sings cases, Kola Nathan cases, Savanna’s Bahrain cases, Minerva Mills cases, Janssen Coke Achaeans Nadir Gandhi cases.

The test of validity of Constitutional amendments is conforming to the basic features of the Constitution. (2) Judicial review of legislation of Parliament, State Legislatures as well as subordinate legislation. Judicial review in this category is in respect of legislative competence and violation of fundamental rights or any other Constitutional or legislative limitations; (3) Judicial review of administrative action of the Union of India as well as the State Governments and authorities falling within the meaning of State.

The researcher’s emphasis is in this direction. It is necessary to distinguish between ‘Judicial review and ‘Judicial control’. The term judicial review has a restrictive connotation as compared to the term Judicial control. Judicial review is ‘supervisory, rather than ‘corrective’, in nature. Judicial review is denoted by the writ system which functions in India under Arts. 32 and 226 of the broader concept and includes Judicial review within itself.

Judicial control comprises of all methods through which a person can seek relief against the Administration through the medium of the courts, such as, appeal, writs, declaration, injunction, damages statutory remedies against the Administration. 10 Therefore Judicial review is a fundamental principle of law that every power must be exercised within the four corners of law and within the legal limits. Exercise of administrative power is not ease-law reference (Indian & Foreign), 6th De. Wade and Company Nagger, New Delhi, 2007, p. 1779. An exception to that basic rule. The doctrines by which those limits are ascertained and enforced form the very marrow of administrative law. Unfettered discretion cannot exist where the rule of law reigns. Again, all power is capable of abuse, and that the power to prevent the abuse is the acid test of effective judicial review. 11 Under the traditional theory, courts of law used to control existence and extend of prerogative power but not the manner of exercise thereof.

That position was, forever, considerably modified after the decision in Council of Civil Service Unions v. Minister for Civil Eservices, wherein it was emphasized that the reversibility of discretionary power must depend upon the subject- matter and not upon its source. The extent and degree of Judicial review and Justifiable area may vary from case to case. 13 At the same time, however, the power of Judicial review is not unqualified or unlimited.

If the courts were to assume Jurisdiction to review administrative acts which are ‘unfair’ in their opinion (on merits), the courts would assume Jurisdiction to o the very thing which is to be done by administration. If Judicial review were to trespass on the merits of the exercise of administrative power, it would put its own legitimacy at risk. It is submitted that the following observations of Frankfurter, l. In Troop v. Dullness, lay down correct legal position: “All power is, in Madison Phrase ‘of an encroaching nature’.

Judicial Power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self restraint. ” Cases On Judicial Review In India The basic function of the courts is to adjudicate disputed between individuals and the state, between the states and the union and while so adjudicating, the courts may be required to interpret the provisions of the constitution and the laws, and the interpretation given by the Supreme Court becomes the law honored by all courts of the land.

There is no appeal against the Judgment of the Supreme Court. In Shanghai Parkas vs… Union of Indian 5th first Amendment Act of 1951 was challenged before the Supreme Court on the ground that the said Act abridged the right to property and that it could not be done as there was a restriction on the amendment of Fundamental Rights under Article 13 (2). The Supreme Court rejected the contention and unanimously held. “The terms of Article 368 are perfectly general and empower parliament to amend the constitution without any exception whatever.

In the context of Article 13 law must be taken to mean rules or regulations made in exercise of ordinary legislative power and amendments to the constitution made in amendments made under Article 368. ” In Asana Sing’s ceases, the corpulence of parliament to enact 17th amendment was challenged before the constitution. Bench improvising of five Judges on the ground that it violated the Fundamental Rights under Article 31 (A).

Supreme court reiterated its earlier stand taken in Shank’ sad’s case and held, “when article 368 confers on parliament the right to amend the constitution the power in question can be exercised over all the provisions of the constitution, it would be unreason about to hold that the word law’ in article 13 (2) takes in amendment Acts passed under article 368. Thus, until 1967 the Supreme Court held that the Amendment Acts were not ordinary laws, and could not be struck down by the application of article 13 (2). The historic case of Kola Nathan vs…

The state of Punishable heard by a special bench of 11 Judges as the validity of three constitutional amendments (1st, 4th and 17th) was challenged. The Supreme Court by a majority of 6 to 5 reversed its earlier decision and declared that parliament under article 368 has no power to take away or abridge the Fundamental Rights contained in chapter II of the constitution the court observed. (1) Article 368 only provides a procedure to be followed regarding amendment of the constitution. (2) Article 368 does not contain the actual power to amend the constitution. 3) The rower to amend the constitution is derived from Article 245, 246 and 248 and entry 97 of the union list. (4) The expression ‘law’ as defined in Article 13 (3) includes not only the law made by the parliament in exercise of its ordinary legislative power but also an amendment of the constitution made in exercise of its constitution power. , (5) The amendment of the constitution being a law within the meaning of Article 13 (3) would be void under Article 13 (2) of it takes away or abridges the rights conferred by part Ill of the constitution. 6) The First Amendment Act 1951, the fourth Amendment Act 1955 and the vehement Amendment Act. 1964 abridge the scope of Fundamental Rights and, therefore, void under Article 13 (2) of the constitution. (7) Parliament will have no power from the days of the decision to amend any of the provisions of part Ill of the constitution so as to take away or abridge the Fundamental Rights enshrined there in. The constitutional validity of the 14th, 25th, and 29th Amendments was challenged in the Fundamental Rights case. The Gobo. F India claimed that it had the right as a matter of law to change or destroy the entire fabric of the constitution through the instrumentality of parliament’s amending power. In Minerva Mills easel the Supreme Court by a majority decision has trunk down section 4 of the 42nd Amendment Act which gave preponderance to the Directive Principles over Articles 24, 19 and 31 of part Ill of the constitution, on the ground that part Ill and part IV of the constitution are equally important and absolute primacy of one over the other is not permissible as that would disturb the harmony of the constitution.

The Supreme Court was convinced that anything that destroys the balance between the two part will Postcard destroy an essential element of the basic structure of our From 1950 to 1975, the Indian Supreme Court ruled that more than one hundred federal and state case Laws, constituted unconstitutional. The Judiciary in the constitutional system, made a very important position. Indian Supreme court on a series of allegations of violation of basic human rights under the Constitution of India conducted a Judicial review of cases.

The Supreme Court’s position is that any attempt to amend the Constitution related to impact of civil rights legislation or regulations are subject to subject to Judicial review. India has also restricted Judicial review of executive and legislative powers to play a role. Judicial review of legislation from the early review extends to all acts of government or administration. It can be said that in addition to specific case, the Court exercise their restraint of Judicial power, Judicial review has almost no borders.

Judicial review of political issues: In the early practice of Judicial review, Supreme Court of India was that if the case involved political issues, does not apply to Judicial review. But then this position has changed slowly, in Shakespearean Breath case, the Court noted that “involves tampering with the Constitution Judicial review of asses may involve political issues, but only the court has the power to Judge cases. Interpret the Constitution’s powers should be attributed to the State Jurisdiction “. The Court’s position in the later case in a series of further specific, as in S.

R. Bombay case, the court decision that “The state Governor, the President formed the basis of his political views may be based on Judgments, it is not appropriate for judicial review. If Justice will fall into a complex political disputes, which the court should be avoided. So , the court can not forbid the President to exercise the powers inferred on him by the Constitution, unless the evil abuse of power, but the court also noted that” Judicial review although it can not review the President’s subjective judgments, but the president may review the basis on which to make decisions. From these precedents it can be seen that the Indian courts in dealing with the basic legal and political position of the Judiciary in finding significant matters involving politics should be careful to play its role of Judicial review, and some restraint in handling cases, to avoid use of Judicial Jeopardize the constitutional review powers he legislative and executive powers, but the Judiciary but also to minimize the abuse of presidential powers.

Judicial review and supervision should be ultra fires the right balance. The basic principles of Judicial review of constitutional status: In 1973, the Supreme Court in the landmark Shakespearean Breath v. State of Carcasses presented the basic principles of Judicial review. Legislature can amend the constitution, but cannot change the basic principles of the Constitution.

If the violation of basic constitutional principles, constitutes unconstitutional is generally believed that the basic principles f the Constitution of India has the following five basic points: the supremacy of the Constitution, republican and democratic form of government, secular constitution, legislative, administrative and Judicial separation of powers and federalism. These basic principles are throughout the Preamble to the Constitution of India and the entire framework of the Constitution.

The Constitution is built on the basic principles citizens on the basis of freedom and dignity, the Indian Constitution, the Law may not deprive citizens of any form of freedom and dignity. The basic principle of the omits the power of all cases. In the subsequent series of cases, the court of Judicial review is further recognized as one of the basic principles of the Constitution. The Court in some cases held that Judicial review is a constitutional fundamental and essential feature.

If the Judicial review is absolutely deprived of the Constitution had no vitality. The Court further pointed out that if the Supreme Court ruled out legislation enjoy the constitutional right to Judicial review, and with no other alternative mechanisms for Judicial review is in violation of the basic principles of the Constitution, the Congress, the legislation goes beyond the scope of legislative power. In 1997, L.

Cathedra Kumar V Union of Indiana case, the Constitutional Court more clearly that “the Constitution and Articles 32 &226 were granted to the Supreme Court and High Court Judicial review of existing legislation is a constitutional right to an integral and essential element Judicial review itself constitutes one of the basic principles of the Constitution. ” Indian Supreme Court precedent established by judicial review the basic principles of the Constitution, this Constitution and the rule f law in Indian’s role can not be ignored, for enhancing the legislative and executive powers of Judicial checks and balances play an important role.

But given the absolute power of Judicial review, in fact distorted the balance of power theory, to some extent, led to the expansion of Judicial review and abuse of power. Judicial activism the expansion of Judicial review: After 80 years of the 20th century, public demand for government administration in strict accordance with the Constitution and laws, hoping to promote administrative reform through Judicial growing louder and louder, the Judiciary is also required in response to the public dicta activism began to take position.

In the subsequent case of Namesake Gandhi, the Supreme Court to promote the implementation of the Constitution in terms of protection of citizens basic human rights, and to seek Indian’s laws in line with the global trend of legal protection of basic human rights. The court of human rights protection thanks to a series of successful litigation procedural law reform, as introduced in the procedural law of social activities on litigation, public interest litigation and other new design of the system, so that vulnerable groups in society an more easily enter the Judicial process.

Indian court has also sought, through judicial interpretation of constitutional provisions to achieve its goals. 80 years in the 20th century and early ass, the Indian court would change its traditional law enforcement agencies as a simple nature of many of its political decision to the Indian society, the enormous social and economic change. While Judicial activism has played an active court supervision of administrative and legislative powers, the role of the effective exercise of Judicial power, to some extent contributed to the improvement of the rule of law in India.

But on the other hand, the Supreme Court’s new role of Judicial activism also has been criticized, and many Critics accused him of breach of the principle of separation of powers, especially the Supreme Court administrative action policies and guidelines established by the widely criticized, is considered by more powers of the executive and legislative areas. As a result, limit the power of Judicial review has become Indian’s new task of constitutional law.

A Comparison Of Judicial Review In India With That Of U. S. A The scope of Judicial Review in India is somewhat circumscribed as compared to that ND limitations there on have been stated in the constitution itself and this task has not been left to the courts. The constitution makers adopted this strategy as they felt that the courts might find it difficult to work act the limitations on the fundamental rights and the same better be laid down in the constitution itself.

The constitution makers also felt that the Judiciary should not be raised at the level of ‘Super legislature’, whatever the Justification for the methods logy adopted by the constitution makers, the inevitable result of this has been to restrict the range of dicta review in India. It must, however, be conceded that the American Supreme Court has consumed its power to interpret the constitution liberally and has made so thorough a use of the due process of law clause that it has become more than a more interpreter of law.

It has, in fact come to occupy the position of a maker of law and has been correctly described as a ‘third chamber of the legislature, indeed, as a super legislature. Of course, the U. S. Supreme Court has assumed this position; it has not been specifically conferred upon it by the constitution. Like the American Supreme Court, the Supreme Court of India enjoys the power of Judicial Review’ and this power has been specifically recognized by the constitution.

However its authority in relation to Judicial review of legislation is more restricted than that of the American Supreme Court. The framers of the Indian constitution took good care not to embody the due process of law clause in the constitution. On the contrary, the Indian constitution refers it to ‘procedure established by law’. It can invalidate laws if they violate provisions of the constitution but not on the ground that they are bad laws. In other words the Indian

Judiciary including the Supreme Court is not a Third Chamber claiming the power to sit in Judgment on the policy embodied in the legislation passed by the legislature. Five Restrictions On The Right Of Judicial Review First, the right to limit Judicial review of administrative Justice in order to avoid excessive intervention and legislation on the Indian courts take the position of judicial activism and Judicial review of horizontal expansion. It has been holding a respected and skeptical attitude toward a mixed complex.

They are respected because Judicial review of the creative interpretation of the Constitution can play on he legislative and executive powers of the strong regulatory role, but at the same time, people have the right to Judicial review of legislation and may be beyond the doubts about the executive power. Second, people think, because of the Judicial review of constitutional issues often involve significant, if not adequately regulate, the subjective element of Judicial review may result in significant social and political consequences.

As pointed out by the Indian Supreme Court Justice Divvied, “The complex mixture of political activity and political values of many of the basic social hospice, the court cannot assume this function. The court in the absence of any clear evidence of constitutional standards and adequate conditions, the basic value of the trade-off is necessarily subjective of the court’s decision and thus inevitably subject to personal preferences of Judges.

The Judge’s subjectivity and thus reduce the legal certainty, and certainty the nature of the rule of law is one of the elements. In fact, if a little of the Supreme Court in the basic issue of constitutional ruling, the Judge can constitutional right of Congress, federal relations, presidential powers such as the oboe there are different views and opinions. ” Restrictions on Judicial review of the content.

Indian’s traditional limits on Judicial review for constitutional and procedural law largely limits procedural restrictions on the two main principles: First, the principle of delay slack (Doctrine of Leaches), that is lost due to slack rights, the court will not grant relief, the second is the principle of rest Judicial , that the Court’s final ruling is made, regardless of the outcome of the verdict, the parties and the courts are bound to accept the verdict content, the arties shall not in respect of the contents of Judgments re- make the same claim, the court shall not be made in respect of the contents of Judgments conflicting judgments.

India, although the court proceedings began against the law other than the Constitution and for other restrictions on Judicial review, but 90 years after the 20th century, social pressure or the introduction of appropriate doctrine of Judicial self-restraint. In terms of Judicial review of the legislative, Judicial self-restraint shown by the allegations of a legislation was unconstitutional, it should still be assumed to be constitutional.

That a bill has not been formally ruled unconstitutional in before it is combined constitution, and the responsibility to prove to the court of its constitutional commitment, the court shall prove that the bill clearly violates the basic principles of the Constitution.

The court reviewed the constitutionality of the application filed from time to time to adopt a constitutional interpretation technology, which “is review the constitutionality of provisions of the Act an interpretation, while the other constitutes an unconstitutional interpretation, the court tends to the former explanation but sometimes this interpretation also depends on the Judge’s personal views and values. In a Judicial review of administrative action, administrative action assumes the constitutionality of the case is weaker than legislation.

But clearly the administration in the Legislative left room for administrative discretion, the court shall also be taken to Judicial restraint doctrine attitude. In other words, the Court of Administrative Discretion cannot challenge the constitutionality, unless there is abuse of the executive branch or the Chief Administrative Discretion is not a tuition. Conclusion With the right public awareness in India, every major government action on Judicial review is of the trend of legal development in India.

Some executive branches of government have begun to take the initiative to bring Judicial review of some controversial issues in order to reduce decision-making responsibilities. From India, the development of Judicial review and the basic framework can draw the following conclusions. First, India is an important Judicial review of the constitutional system in Indian capitalism. The rule of law plays a positive role in safeguarding the institutional system. Secondly, the main function of Judicial review of the system is to balance the legislative and administrative constraints, and in essence is the interests of all sectors.

The purpose of Judicial review from the Indian courts is to establish the constitutional principle of Judicial review, as well as the expansion of judicial review. The Judicial review of constitutional governance is to be a useful tool to play its effective role. Courts need to balance different social interests, to take appropriate activism or restraint doctrine in the Judicial review and to consider many ND the nature and scope of the discretionary decisions that may affect the rights and interests of the consequences.